South Africa’s constitution provides that in all matters concerning a child, the best interests of the child standard must always be the parties’ and court’s predominant consideration. From a practical perspective, the best interests test applies as much horizontally (between different parties and individuals) as it does vertically (between different levels of authority) and no where is this requirement more apparent, than in the mediating of parenting plans.
MEDIATING PARENTING PLANS
During a family mediation involving a child, the mediator helps each parent to think about and present to the other parent, their specific ideas regarding how they would ideally like their Parenting Plan to look like.
Once all the proposals have been put forward, parents are given an opportunity to discuss the proposals with one another. As there are a myriad of potential options open, the mediator facilitates this discussion between the parents. No two children are alike, the mediator will accordingly help the parents to consider the specific needs of each child, as well as the general needs of the family unit and help the parents to clarify how these needs can best be accomodated. The mediator will also help the parents to assess the reasonableness of each proposal that they may put forward in this regard.
Talking through these issues helps parents:
- align their parenting focus,
- keep the needs of the children at the forefront of their discussions,
- keep their children out of the firing line.
The advantage of having the parents’ final agreed-upon arrangement recorded in a written Parenting Plan is that this helps to prevent post-separation/divorce disputes arising between the parents. Post-divorce disputes range from conflicts on care and contact, to conflicts pertaining to parents’ decision-making powers, and general day-to-day issues.
Whatever the dispute may be, research shows that the impact hereof is always devastating for the child (irrespective of the child’s age).
GOAL OF THE PARENTING PLAN
A well-mediated Parenting Plan is one which not only meets the legal requirements set out in the Children’s Act and the Regulations to the Children’s Act but also puts in place various mechanisms for dealing with potential disputes as and when these disputes arise.
THE PURPOSE OF A PARENTING PLAN
Essentially the aim of a Parenting Plan is to:
- Regulate the exercise of each parent’s parental responsibilities and rights in respect of a child;
- Facilitate co-operative parenting relationships between the parents;
- Maintain the relationship between the child and each parent during separation and after divorce;
- Eradicate unnecessary disputes regarding the children;
- Serve the best interests of the child.
Mediation seeks to help parents develop a Parenting Plan that is unique and specific to the needs of their family. A well crafted Parenting Plan has great potential to reduce the level of conflict between parents. This in turn, would no doubt help to lower the level of trauma normally experienced by the child in the aftermath of their parents’ separation and divorce.
According to the findings of the experts, children experience emotional distress when:
- they witness or hear their parents arguing;
- when their parents involve them in the divorce determinations;
- when their parents involve them in adult discussions on the other parent’s fitness to parent;
- where parental alienation is present; and
- where the children are required to act as the go-between for their parents.
THE ROLE OF THE FAMILY MEDIATOR
Ideally, when mediating Parenting Plans, the mediator will assist the parents to:
- move away from discussions centered solely on their own positions and rights;
- discuss parental wants, needs, concerns, and fears;
- consider the needs and best interests of their child;
- hear their child’s perspective on matters impacting their child;
- work towards developing a mutually satisfactory Parenting Plan;
- seek an arrangement that will serve the best interests of the child; and
- develop a Parenting Plan that will stand the test of time.
A mediator will as far as possible, assist the parents through a process of constructive dialogue to gain clarity and understanding of not only their own, but also of the other parent’s perspective, as well as that of the child.
One of the key goals for the mediator is to help parents recognize the steps that they need to take in order to create a home environment for their child that is:
- free from stress and hostility;
- able to serve the child’s best interests (in every respect);and
- capable of fostering the child’s growth thereby enabling the child to flourish notwithstanding the divorce or separation.
CHILD’S VOICE
Depending on the age of the child and the nature and extent of the dispute between the parents, the mediator may suggest that the child be allowed to participate in the process so that the child’s voice can be heard by its parents, through either:
- the assistance of the child’s therapist;
- the assistance of the mediator who is mediating the parent’s matter ; or
- the assistance of another mediator.
CONCLUSION
Ultimately though whatever is contained in the final Parenting Plan should be the jointly agreed upon arrangement that the child’s parents have together decided will be in the best interests of their child, regard being had to their child’s voice in this regard.
Children’s Act link